Robert Bork’s Revenge?

The distinguished jurist Robert Bork has died at the age of 85. Roger Kimball recalls him here, noting with understatement that the Left’s scorched-earth opposition to his Supreme Court nomination was “obscene.” I have a long account of it in The Age of Reagan, but the core of the matter is this: “George Will was not alone in calling Bork ‘the most intellectually distinguished nominee since Felix Frankfurter.’ That was exactly the problem for the Left.”

At least no one drowned in "Robert Bork's America"

Bork’s nomination brought out the highest hypocrisy of the Left. Take the current Vice President, Wide-Mouth Biden, as an example. When President Carter nominated the liberal Abner Mikva to an appeals court in 1979, Biden rebuffed conservative complaints about Mikva’s activist liberal philosophy: “I think that the advice and consent responsibility of the Senate does not permit us to deprive the President of the United States from being able to appoint that person or persons who have a particular point of view unless it can be shown that their temperament does not fit the job.” Ted Kennedy said on the Senate floor: “If strong political views were a disqualifying factor from serving on the federal bench, then all of us here today—and every man and women who has ever served in either house of Congress, or held political office—would be disqualified.” Kennedy had made a similar argument in 1967 in defense of Thurgood Marshall’s appointment to the Supreme Court. That all went out the window with Bork, of course.

Bork’s death today might well represent his ultimate revenge on the Left: had he been confirmed to the Court, his passing today (there’s no special reason to think he would have retired) would have opened up an appointment for President Obama to name a new Justice and tip the Court to the Left. Instead, the man Reagan put in the seat Bork would have filled, Anthony Kennedy, will carry on, determined, I am reliably told, to serve at least until Obama is gone in part because he was offended by Obama’s demagogic attack on the Citizens United decision that Kennedy wrote. Another irony is that the chief reason Reagan selected Scalia over Bork for an open seat on the Court in 1986 was that he thought he might not get any more high court appointments, and wanted to place a jurist on the Court who would serve for a long time.

Some months ago the Daily Beast’s Lloyd Grove caught up with Bork, and suggested that his obituary would dwell on his role in the 1973 “Saturday Night Massacre” of the Watergate scandal. Bork (whom I knew slightly) responded as I would have expected:

“I’d like to know how you know what my obituary is going to say,” Bork gruffly demands when I suggest the above-mentioned scenario. In any case, he adds, “I have no control over it—so I refuse to worry about it.”

The irony, surely lost on liberals, is that the serious criticism of Bork’s jurisprudence would come from the Right, rather than the Left (though it was not disqualifying for the Court, to be sure). Bork, like Scalia, was a strict textualist, and has little regard for the natural law tradition of the American founding, or its implication, for example, in the Ninth Amendment. In this Bork was reacting against the abuse of the 9th and 14th Amendments by liberal judges to “discover” positive “rights” in the “emanations and penumbras” of the Constitution. In other words, Bork was something of a legal positivist—but of the Right rather than the Left. Had he been confirmed, a Justice Bork would likely have followed Chief Justice Rehnquist in upholding most exercises of state power so long as they were reasonably spelled out in statutes.

Ironically the person who was on to this was Judiciary Committee chairman Joe Biden, who cleverly undermined Bork from the Right. In questioning from Biden, Bork compared the Ninth Amendment to an “inkblot”—as a clause without useable meaning. “Nobody has ever to my knowledge understood precisely what the Ninth Amendment did mean and what it was intended to do,” Bork told Sen. Biden. It was hard to escape the conclusion that much of Bork’s dislike of the Ninth Amendment stemmed from its use by Justice Arthur Goldberg as the basis for discovering a “right to privacy” in Griswold. But can it really be that a passage of the Constitution is practically meaningless, that there are rights which judges are powerless to protect? Were the Founders bad draftsmen? Was Bork truly unaware of Alexander Hamilton’s argument in Federalist 84 against including a bill of rights in the Constitution, namely, that a positive enumeration would have the effect of mis-instructing the people as to the nature and extent of their rights, as well as laying a pretext, by omission, for the government to grab more power than the Constitution intended? Hamilton’s argument was rejected, though his logic has certainly been vindicated with the passage of time.

None of this, as I say, is disqualifying for a Supreme Court seat, and in fact it is nearly the identical outlook as Justice Scalia’s. Still, I doubt any of the obituaries that will appear today will make note of this most interesting aspect of Bork’s story. The legacy of the vicious and obscene campaign against Bork is not just a new verb in the dictionary, but a permanently warped judicial confirmation process that now reaches lower judicial appointments. If it were possible to confer “contempt of court” rulings against the Left, the case of Bork would easily meet any standard of probable cause. Instead we should remember Bork by holding the Left in contempt of the public, which is their default position.